Metropolitan Petar v Mitreski - [2004] NSWSC 122

CITATION: Metropolitan Petar v Mitreski [2004] NSWSC 122

HEARING DATE(S): 3 March 2004

JUDGMENT DATE:
3 March 2004

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: Fixture vacated.

CATCHWORDS: PROCEDURE [32] - Courts and Judges generally - Courts - Adjournment - Discretion of Court - Late application - Refusal of adjournment likely to lead to defendants being unrepresented in proceedings which are difficult, complicated and technical.

PARTIES :
His Grace Metropolitan Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (P1)
The Very Reverend Father Mitko Mitrev (P2)
Lambe Mitreski (D1)
Pero Damceski (D2)
Boris Minovski (D3)
Eftim Eftimov (D4)
Mile Marcevski (D5)
Macedonian Orthodox Community Church St Petka Incorporated (D6)
Naum Despotovski (D8)
Attorney General for State of NSW (D9)

FILE NUMBER(S): SC 3369/97

COUNSEL: T G R Parker and R E Steele (Ps)
G O Blake SC (D1 - 6 & D8)
V Colaluce (D9)

SOLICITORS: Sachs Gerace Lawyers (Ps)
McConnell Jaffray (D1 - 6 & 8)
I V Knight, Crown Solicitor (D9)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 3 MARCH 2004

3369/97 HIS EMINENCE PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND & ANOR v LAMBE MITRESKI & ORS

JUDGMENT

1 HIS HONOUR: This is an application to vacate a second trial in this matter fixed to commence on 15 March 2004. An earlier trial of questions relating to the constitution of the trust was heard by me and judgment delivered in 2003: Metropolitan Petar v Mitreski [2003] NSWSC 262. The situation surrounding this application is, as with so many other things relating to these proceedings, a vexed one.

2 The defendants' solicitor and counsel who have conducted the matter thus far are owed a large sum, in excess of $250,000. In November 2003 the plaintiffs’ solicitors wrote to the defendants’ solicitors and the statement of claim was further amended claiming squarely as a breach of trust the use of the funds of the trust to conduct the defence of the proceedings. It had earlier been signalled (no later than April 2003) that use of the funds in this fashion was regarded by the plaintiffs as a breach of trust. The defendants' solicitor has sworn, and I accept his word, that his state of mind was that the proposition then put to him was unsound and he did not come to the view that the defendants' legal representatives could not continue to act with any confidence in their costs being met from the trust fund until his mind was focused by what occurred in November 2003. It may be that this is unfortunate, but I accept his word that this was his state of mind.

3 Since that time steps have been taken to obtain through the Pro Bono Scheme of the Bar Association advice which would found an application under s 63 of the Trustee Act 1925 to determine whether or not the sixth defendant would be justified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Metropolitan Petar v Mitreski

Details

AGLC: Metropolitan Petar v Mitreski [2004] NSWSC 122
Case: [2004] NSWSC 122
Decision Date: 3 March 2004

CaseChat Overview and Summary

The case of Metropolitan Petar versus Mitreski was heard in a court that needed to decide on an application for an adjournment. The applicant, Metropolitan Petar, sought a delay in the proceedings due to circumstances that arose late in the process. The respondent, Mitreski, opposed the adjournment, arguing that it was an abuse of process. The court was required to weigh the merits of the application against the potential for unfairness to the respondent.

The central legal issue before the court was whether the application for an adjournment was made in good faith and whether the circumstances warranted a delay in the proceedings. The court had to consider the reasons provided for the late application, the complexity of the case, and the potential for prejudice to the respondent if the adjournment was granted. The court also needed to assess whether the refusal of the adjournment would result in the respondent being unrepresented, given the technical and complicated nature of the proceedings.

In assessing the application, the court considered the lateness of the request and the reasons provided for the delay. The court recognised that the proceedings were intricate and technical, and that a refusal of the adjournment could result in the respondent being unrepresented. The court concluded that, while the application was late, the circumstances were such that granting the adjournment was necessary to ensure a fair and just outcome. Consequently, the court exercised its discretion to grant the adjournment, recognising the potential for significant prejudice to the respondent if the adjournment was not granted.

The court ordered that the proceedings be adjourned to a later date to allow the respondent adequate time to prepare and, if necessary, obtain legal representation. The specific terms of the adjournment were to be determined by the parties and confirmed by the court at a later date. The decision underscored the importance of ensuring that all parties have a fair opportunity to present their cases, particularly in complex and technical proceedings.

Orders